Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 02F01534
BUTZ, J.Codefendants Kinson Her, a juvenile, and Houa Lao were tried together as adults and found guilty by a jury of first degree murder (Pen. Code, §§ 187, subd. (a)), premeditated attempted murder (§ 664/187, subd. (a)) and discharging a firearm from a vehicle (§ 12034, subd. (d)), with true findings as to each count that they caused great bodily injury (§ 12022.53, subd. (d)), discharged a firearm (§ 12022.53, subd. (c)), and committed the offense to benefit a criminal street gang (§ 186.22, subd. (b)(1)). The jury also found as a special circumstance that defendants intentionally discharged a firearm from a motor vehicle with intent to inflict death. (§ 190.2, subd. (a)(21).)
Undesignated statutory references are to the Penal Code.
Defendants each received aggregate state prison terms of life without the possibility of parole, supplemented by an indeterminate consecutive term of 25 years to life, plus 20 years. In these consolidated appeals, defendant Her claims instructional, evidentiary and sentencing errors and challenges the sufficiency of the evidence to support the convictions and enhancements. Defendant Lao focuses solely on instructional errors.
Finding no trial error, we shall affirm both convictions. However, owing to his young age at the time of the offense, defendant Her’s life without parole prison term was unlawful, and we shall modify the judgment accordingly.
FACTUAL BACKGROUND
This case arises from a drive-by shooting involving rival Hmong gangs. Defendants Her and Lao were members or affiliates of the gang “Masters of Destruction” or “Menace of Destruction,” better known by the acronym MOD.
On February 3, 2002, Her and Lao attended a Super Bowl party at Xang Thao’s home in Meadowview. After the game, they departed with several MOD members in a minivan driven by Her’s cousin, Rindy Her (Rindy).
Fifteen miles away, on the north side of town, a Toyota Camry was stolen. At 8:33 p.m. that same evening the stolen Camry drove past an apartment building at 3212 Western Avenue in Sacramento (3212 Western) and fired weapons at Fong Vue, Vue Heu and Yee Xiong, who were standing in front of the driveway. Heu and Xiong were both affiliated with MOD’s chief rival, the Hmong Nation Society or HNS. MOD claims its territory in South Sacramento neighborhoods such as Meadowview, Valley Hi and Oak Park. HNS claims the northern part of the city for its territory, including Western Avenue, where the shooting occurred. Fong Vue died a few days later as a result of shotgun wounds to the head. Xiong suffered head injuries, but survived the attack. Xiong tentatively identified Lao as one of the shooters inside the Camry.
Police found shotgun pellets around Fong Vue’s body. Bullets and fragments from one or more handguns were also found around the driveway. Spent .45-caliber casings were found on the grass between 3212 Western and the adjacent building.
There was evidence that the targeted victims who were standing in front of 3212 Western had returned the gunfire: Although he denied shooting a firearm himself, residue tests on victim Xiong’s hands indicated he had recently fired a gun. The rear window of the Camry was shattered by a bullet that the People’s forensic expert determined was likely fired from outside the vehicle and which exited through the front windshield. There were also bullet marks in the rear bumper and spare tire.
Within minutes of the shooting, Police Officer Warren Estrada spotted the Camry making an illegal turn, near Fifth and G Streets in West Sacramento. When he pulled the Camry over, it initially came to a stop, then led Estrada on a high-speed chase through the adjacent neighborhood. At Second and E, three Asian males jumped out of the car and took off running in different directions. Estrada, now on foot, followed one of the fleeing suspects, who came to an embankment, leaped into the river and began swimming. Estrada jumped in after him, and eventually pulled Lao, who had tired in the current, out of the water. In his wallet, Lao was carrying a piece of paper with the word “MOD” written on it.
Inside the Camry, police found 12-gauge shotgun casings as well as .32-caliber casings. On the floorboard in the back seat was a blue bandana with a fluid stain that was matched to Her’s DNA. A blue jacket, later identified as one worn by Her, was found in the back seat of the car. Inside the jacket was a cell phone. The phone rang from a caller identified on the screen as “Xang.” Sergeant James Duncan answered, “Where are you at?” The caller responded that they were at the end of the bridge in Old Sacramento, that there were “hella cops around,” and that he should meet them on the other side of the bridge.
The telephone number displayed on the phone found in the blue jacket matched that of a cell phone belonging to Xang Thao, one of the Super Bowl party attendees.
Using this information, officers went to Old Sacramento and detained defendant Her’s cousin Rindy, John Her, Xang Thao and others, who were standing around Rindy’s minivan with Xang’s cell phone.
Rindy testified that he and his companions were playing pool after the Super Bowl, when they received a call from Her telling Rindy to pick him up at the Money Store. During the call, Rindy heard Lao’s voice in the background, saying, “Hurry up.” The group tried to get to the Money Store, but West Sacramento was inundated with police, so they drove across the bridge into Old Sacramento, where they were arrested.
At 3:00 a.m. the next morning a street sweeper working in West Sacramento recovered a .380-millimeter Beretta semiautomatic pistol and a .32-caliber Colt semiautomatic pistol lying on the side of the road north of E Street. Officers searching the area where the police chase occurred found a 12-gauge shotgun with a pistol grip near F and Second Streets in West Sacramento.
Police later found three unexpended shotgun shells in Lao’s closet that were of the same brand as the shells found in the Camry. Lao’s fingerprint was lifted from a passenger door of the Camry.
Her’s girlfriend, Brenda Ly, testified that Her represented himself to be a member of MOD. Somewhere between 9:00 and 10:00 o’clock on the evening of the shooting, Ly received a call from Her, telling her to pick him up at a pay phone booth in West Sacramento. Ly complied. On the way back to her house, Ly noticed that many police cars and helicopters were in the area and asked Her if he knew anything about it. He answered, “No,” but then added, “I didn’t want to tell you because I [would] rather have you not know.”
Ly and Her slept together that night. Between 10:48 p.m. on February 3 and 2:53 the next morning, about 60 phone calls were made from Ly’s cell phone, including some to Minnesota. Ly admitted that she only made “a few” of these calls.
Shortly before 11:00 p.m. on February 3, a series of calls was made to the cell phone of Xang Thao, who was then in police custody. Officer Corey Johnson answered the phone, and a male voice with an Asian accent at the other end repeatedly asked for Xang. Johnson kept telling the caller that Xang was busy. The caller became enraged, referred to himself as “Sac High MOD,” and threatened to “kick” Johnson’s “f’ing ass” if he did not let him speak to Xang. While most of the calls came from blocked numbers, the last one, at 10:45 p.m., was from a caller identified on the screen as “Brenda” and in fact came from Ly’s cell phone.
The day after the shooting, Her traveled to Minnesota. Her, who was 15 years old, told his girlfriend he was on a “business trip.” While he was in Minnesota, he asked Ly to get him the address for Lao, who was by then incarcerated. In April 2002, Ly sent $220 to Her addressed to “John” Her in Minnesota. In July 2002, Her was arrested in Minnesota and transported back to California.
Detective Aaron Lee testified as an expert on Asian gangs. MOD is the largest Hmong gang in Sacramento. MOD members commit car thefts, homicides, drive-by shootings, robberies and other violent crimes. There is a history of animosity between MOD and its northern rival, HNS. Younger brothers, cousins or relatives of MOD gang members tend to join smaller groups. One of these groups is the Youth Mafia Society, or YMS. After explaining the various factors that go into validating a youth as a gang member, Lee testified that defendant Her has been a validated member of YMS since the year 2000. Defendant Lao is a validated member of MOD, as letters he wrote from jail bear out his affiliation.
Detective Lee described several incidents exemplifying the enduring rivalry and hostility between the MOD’s and HNS gang. He told the jury that a gang member who participates in a drive-by shooting enhances his reputation within the gang and sends a message to the community to fear and respect the gang. Gang members do not normally tread into the territory of their rivals. Presented with a hypothetical drawn from the evidence in this case, Lee opined that a drive-by shooting committed in well-known HNS territory by three MOD members was committed for the benefit of the MOD street gang.
DISCUSSION
I. Sufficiency of the Evidence to Support Her’s Conviction
Her contends there was “no direct or circumstantial evidence” of his participation in the drive-by shooting at 3212 Western, and subsequent death of Fong Vue. He argues that the evidence shows, at most, that he was present at the scene of the crime and failed to prevent it--evidence not sufficient to convict him beyond a reasonable doubt of first degree murder. We disagree.
When confronted with a claim that the evidence is insufficient to support the verdict, the reviewing court examines the record to determine “‘whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] Further, ‘the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] This standard applies whether direct or circumstantial evidence is involved.” (People v. Catlin (2001) 26 Cal.4th 81, 139.)
In reviewing the sufficiency of the evidence, the well-established test for review, “is whether there is substantial evidence to support the conclusion of the trier of facts, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Wheeler (1977) 71 Cal.App.3d 902, 906, citing People v. Reyes (1974) 12 Cal.3d 486, 497.)
Viewing the record in the light most favorable to the People, we find substantial evidence to support the jury’s determination that defendant Her was one of the perpetrators of the drive-by shooting at 3212 Western.
The evidence showed that the shooting was committed by the occupants of a Camry, who stole it in the northern part of Sacramento and drove it to 3212 Western, where the shooting occurred. The perpetrators then fled to West Sacramento, where they abandoned the Camry following a high-speed police chase. The pursuing officer observed three Asian males exit the car, and forensic evidence showed that three different firearms (two handguns and a shotgun) were fired from the Camry.
Lao was undoubtedly one of the shooters, based on his identification by the surviving victim, his aquatic capture after fleeing from the Camry, the shotgun shells found in his closet, and his fingerprint found on the door of the Camry.
Her and Lao were both affiliated with the MOD street gang and Her was a validated member of YMS, a junior version of MOD. Her also attended the Super Bowl party where Lao and other MOD gang members were present. Soon after a group of them left the party, the Camry was stolen. The drive-by shooting occurred a short time later, in the same area.
Immediately after the shooting, law enforcement personnel and police helicopters surrounded the Money Store/Tower Bridge/Old Sacramento area. During the same time frame, Her called his cousin Rindy, asking to be picked up from the Money Store. Lao’s voice could be heard in the background. Her’s jacket and a bandana with fluids containing his DNA were found in the Camry. There was strong circumstantial evidence that Her used his girlfriend Brenda Ly’s phone to call Xang Thao’s phone, which was in possession of the police. The caller identified himself as a MOD gang member.
When Ly picked Her up in West Sacramento around 10:30 p.m. that night, she asked him whether he had anything to do with the police cars and helicopters in the area. His reply, that he did not want to tell her because he preferred that she not know, was a statement from which the jury could infer consciousness of guilt.
Circumstantial evidence established that Her made numerous calls from Ly’s cell phone in the early hours of the next morning, including some to Minnesota. The day after the shooting, Her fled to Minnesota, where Ly eventually sent him money.
Based on the above evidence, a reasonable jury could find that Her was one of the three assailants who committed the drive-by shooting at 3212 Western that resulted in Fong Vue’s death. Because the evidence was sufficient to find that Her was a direct perpetrator, we need not discuss his related contention that the evidence was insufficient to find him guilty as an accomplice.
II. Sufficiency of the Evidence to Support the Firearm Enhancement
For the reasons advanced in the previous argument, Her contends the special firearm findings were devoid of substantial evidence in the record and should be stricken, since there was no evidence he personally discharged a firearm in the commission of the offense.
We reject the argument for the reasons we have just stated. Two handguns and a shotgun were abandoned in the same area of West Sacramento where the stolen Camry led Officer Estrada on a high-speed chase only a few hours earlier. Hence, the trier of fact could find that all three occupants of the car personally discharged a firearm while driving past 3212 Western.
III. Sufficiency of the Evidence to Support the Gang Enhancement
Her contends that the evidence was insufficient to support the jury’s finding that the shooting was committed to further criminal conduct by gang members within the meaning of section 186.22.
Section 186.22, subdivision (b)(1) provides an enhancement punishment for any crime that has been committed “for the benefit of, at the direction of, or in association with [a] criminal street gang,” and with specific intent “to promote, further, or assist . . . criminal conduct by gang members.”
There was no shortage of evidence that this crime was the direct result of hostilities between the MOD gang, to which Her belonged, and the HNS gang, with which two of the targeted victims were affiliated.
There was also evidence that Her and his MOD companions stole a car and traveled to a known HNS neighborhood, where they committed the drive-by shooting targeting HNS members. As the People’s gang expert, Detective Lee, explained, “reputation is everything in the gang subculture.” A drive-by shooting in the territory of a rival gang sends a powerful message to the community that MOD is composed of hard-core killers and therefore the community should fear and respect them. Presented with a hypothetical based on the facts of this case, Lee opined that the shooting would “definitely” benefit the MOD criminal street gang. “A drive-by shooting is a classic gang case. Drive-by shootings are synonymous with gangs. . . . [¶] You know, this drive-by shooting, these circumstances which you have given me here, it sends a clear message to all of MOD’s enemies that, hey, if you mess with us, you’re gonna pay the consequences.” “The use of expert testimony in the area of gang sociology and psychology is well established.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1370 (Olguin).)
We conclude the trier of fact could reasonably find the crime was committed for the benefit of a street gang. (See People v. Duran (2002) 97 Cal.App.4th 1448, 1465; Olguin, supra, 31 Cal.App.4th at pp. 1382-1383.)
While not contesting evidence that he was a validated member of YMS, Her claims that the gang enhancement finding was unsupported because the prosecution failed to prove that YMS was a criminal street gang within the meaning of the statute, i.e., an “ongoing organization, association or group of three or more persons” sharing a common name or common identifying sign or symbol, that has as one of its “primary activities” the commission of specified criminal offenses; and engages through its members in a “pattern of criminal gang activity.” (§ 186.22, subd. (f); see People v. Gardeley (1996) 14 Cal.4th 605, 610 (Gardeley).)
Her’s argument reads the enhancement statute too narrowly. The enhancement is triggered when the crime is “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1), italics added.) YMS was a junior “wannabe” gang, populated by younger relatives and friends of the MOD’s. Detective Lee described a long record of homicides and other violent crimes engaged in by the MOD gang. Since YMS was a junior street gang operating under the MOD umbrella and Her called himself a MOD, the jury could find that the crime was committed for the benefit of and to promote the criminal activities of the MOD gang, regardless of whether Her himself was a validated member.
Her’s argument that there was insufficient evidence to show that crimes of violence and theft were MOD’s “primary activities” borders on the frivolous. Detective Lee testified extensively as to numerous street crimes engaged in by MOD since the 1990’s, including beatings, stabbings, drive-by shootings and car thefts. The jury was also entitled to consider the present drive-by shooting as evidence of the group’s primary activities. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) Incontrovertibly, there was substantial evidence that one of MOD’s primary activities was the commission of gang crimes enumerated within the statute. (§ 186.22, subd. (e); see Sengpadychith, supra, at pp. 323-324; Gardeley, supra, 14 Cal.4th at p. 620.)
Her’s claim that Detective Lee’s testimony was based on nothing more than “nonspecific hearsay” is without merit. First, the point was forfeited because Her’s trial attorney never lodged a hearsay objection in the trial court. (Evid. Code, § 353.) Moreover, the fact that a gang expert bases his opinion on hearsay does not render per se such testimony objectionable. (Olguin, supra, 31 Cal.App.4th at p. 1385.)
Finally, we reject the argument that the prosecution failed to show that Her harbored a specific intent to promote criminal activity by gang members. As stated in People v. Morales (2003) 112 Cal.App.4th 1176, “specific intent to benefit the gang is not required. What is required is the ‘specific intent to promote, further, or assist in any criminal conduct by gang members.’” (Id. at p. 1198, italics added.) The evidence we have recited, that Her knowingly aided members of MOD in committing the drive-by shooting, was sufficient of itself to satisfy the specific intent requirement. (Ibid.)
IV. Detective Lee’s Response to the Hypothetical Question
In response to a hypothetical question from the prosecutor, Detective Lee opined that a drive-by shooting committed in well-known HNS territory by three MOD members was committed for the benefit of the MOD street gang. Her launches a three-pronged attack on the admission of this testimony: (1) Lee’s opinion was inadmissible because the hypothetical question was not “rooted in the facts shown by the evidence” (citing Gardeley, supra, 14 Cal.4th at p. 618); (2) Lee’s characterization of him as a “hard-core killer” was inflammatory and highly prejudicial; and (3) the opinion violated the confrontation clause of the United States Constitution because it was based on the “factual assertions of individuals who were not called to testify and were thus not subject to cross-examination.”
None of these arguments has been preserved for appeal because Her’s trial attorney failed to make any objection to Detective Lee’s opinion testimony when it was given. (Evid. Code, § 353; People v. Kipp (2001) 26 Cal.4th 1100, 1124; People v. Garceau (1993) 6 Cal.4th 140, 179.) And the failure to raise a constitutional challenge to Lee’s testimony in the trial court means that his Sixth Amendment argument has been forfeited as well. (People v. Benson (1990) 52 Cal.3d 754, 788.) “[T]he rule that a challenge to the admission of evidence is not preserved for appeal unless a specific and timely objection was made below stems from long-standing statutory and common law principles.” (People v. Anderson (2001) 25 Cal.4th 543, 586.)
No cognizable challenge to Detective Lee’s testimony is raised on this appeal.
V. Witness Intimidation Evidence
In the middle of prosecution witness Rindy Her’s testimony, the court held an in-chambers hearing, during which Rindy disclosed he had been assaulted, his house had been fired upon, and he had received anonymous calls threatening to kill him if he testified. (Rindy stated that he was worried about testifying, because there were a lot of Kinson Her’s friends out there, making him feel unsafe.
Over defendants’ objection that the prejudicial effect of the evidence outweighed its probative value (Evid. Code, § 352), the trial judge allowed Rindy to describe these acts in front of the jury, for the sole purpose of evaluating his demeanor. Prior to admitting this evidence, the judge gave the following instruction:
“Ladies and gentlemen, at this time I am going to give you a limiting instruction. You must follow this instruction.
“You are about to hear testimony concerning some threats and acts of violence directed toward this witness. This evidence is only to be considered in evaluating [Rindy] Her’s attitude and demeanor towards testifying. The evidence is not to be considered against Houa Lao and Kinson Her. There’s no evidence connecting [codefendants] Houa Lao and Kinson Her to these acts.”
Rindy thereupon recounted the acts of witness intimidation and stated his belief that they were committed by gang members associated with his cousin, defendant Her.
Her now claims that the admission of this evidence was prejudicial error, because it “painted [him] in the minds of the jurors as a gang member and a violent individual with violent associates,” and was not “fairly relevant” to Rindy’s credibility. The argument lacks merit.
“‘Evidence a witness is afraid to testify is relevant to the credibility of that witness and is therefore admissible. [Citations.] Testimony a witness is fearful of retaliation similarly relates to that witness’s credibility and is also admissible. [Citation.] It is not necessary to show threats against the witness were made by the defendant personally, or the witness’s fear of retaliation is directly linked to the defendant for the evidence to be admissible.’” (Olguin, supra, 31 Cal.App.4th at p. 1368, quoting People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1587-1588.) As the court noted in Olguin: “A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony. Just as the fact a witness expects to receive something in exchange for testimony may be considered in evaluating his or her credibility [citation], the fact a witness is testifying despite fear of recrimination is important [in] fully evaluating his or her credibility. For this purpose, it matters not the source of the threat. It could come from a friend of the defendant, or it could come from a stranger who merely approves of the defendant’s conduct or disapproves of the victim. . . . [¶] Regardless of its source, the jury would be entitled to evaluate the witness’s testimony knowing it was given under such circumstances.” (Olguin, supra, at pp. 1368-1369.)
“We will not overturn or disturb a trial court’s exercise of its discretion under [Evidence Code] section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) Here, the evidence was admitted with a proper cautionary admonition that it was to be considered solely for purposes of its effect on Rindy’s demeanor and attitude toward testifying. The jury was also reminded there was no evidence connecting defendants to the acts described. We find no error, prejudicial or otherwise, in the admission of the intimidation testimony.
VI. Her’s Miranda Rights
On July 2, 2002, Detective John Keller traveled to Minnesota, where he interviewed Her. During trial, Her’s counsel made an amorphous oral motion in limine, in which he claimed that Her’s statements to Keller were elicited in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]. Counsel argued that his client’s waiver was not free and voluntary, because he was only 15 years old, had “minimal contact with the justice system” and did not have an adult present during questioning. He also asserted that there was “pre-Miranda custodial interrogation” and that Detective Keller engaged in subterfuge and deceit. The trial court denied the motion, finding that Her had previous contact with the criminal justice system, had previously been advised of his Miranda rights, and that his waiver was knowing, intelligent and voluntary. Echoing trial counsel’s arguments, Her claims the trial court’s ruling was incorrect.
There is no written motion in the record and counsel never described the remedy he sought. Consequently, we are unable to ascertain from the record exactly what evidence Her was seeking to exclude from the trial. The trial court characterized the motion as one to suppress Her’s statement to Detective Keller.
We need not reach the merits of the ruling, because Her has totally failed to demonstrate that the admission of his statements to Detective Keller was prejudicial.
Admission of statements obtained in violation of Miranda are subject to review under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711] (Chapman), under which we inquire whether the error may be deemed harmless beyond a reasonable doubt. (See Arizona v. Fulminante (1991) 499 U.S. 279, 310 [113 L.Ed.2d 302, 331-332]; People v. Cunningham (2001) 25 Cal.4th 926, 994.)
In the interview, Her steadfastly denied knowing Lao or anything about the shooting. In his brief, Her makes no attempt to demonstrate that the admission of his statements influenced the jury verdict or significantly affected the outcome of the trial. Prejudice is never presumed; it must be affirmatively demonstrated. “Anyone who seeks on appeal to predicate a reversal of conviction on error must show that it was prejudicial.” (People v. Archerd (1970) 3 Cal.3d 615, 643; People v. Bell (1998) 61 Cal.App.4th 282, 291.) Because Her makes no such showing, we must conclude “that the error complained of did not contribute to the verdict obtained” (Chapman, supra, 386 U.S. at p. 24 [17 L.Ed.2d at p. 710]) and therefore any error was harmless beyond a reasonable doubt.
In his factual recitation, Her claims that his statements to Detective Keller were used to search a residence where police discovered letters indicative of gang affiliation and that his denial that he knew defendant Lao was used to show consciousness of guilt. However, since this passage (1) does not appear under a separately headed argument; (2) does not address the issue of prejudice; and (3) is unaccompanied by a single citation to the record, it does not qualify as cognizable legal argument. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2; People v. Dougherty (1982) 138 Cal.App.3d 278, 282; see also Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830.)
VII. Instructional Errors
A. CALJIC No. 2.71.5--Adoptive Admissions
Her claims the trial court erred when it instructed the jury regarding “Adoptive Admission--Silence, False or Evasive Reply to Accusation.” (CALJIC No. 2.71.5.) The instruction told the jury that if they should find Her made a statement under conditions which reasonably afforded him an opportunity to reply, yet he failed to make a denial or made an evasive statement in the face of an accusation connecting him to the commission of the crime, then the circumstance of his response may be considered as an admission that the accusation was true.
All references in this opinion to CALJIC are to the January 2005 edition of California Jury Instructions, Criminal.
Her argues that the admission instruction violated his constitutionally protected right to remain silent. He reasons that the only evidence that could have been subject to CALJIC No. 2.71.5 was his interview with Detective Keller, after Miranda warnings had been given. Relying on People v. Edmondson (1976) 62 Cal.App.3d 677, he claims that where a person invokes his Fifth Amendment rights, silence cannot be used against that person as an adoptive admission of guilt.
The claim must be rejected for at least two reasons. First, Her did not invoke his right to remain silent. He waived his right to remain silent and agreed to speak with Detective Keller. Her was never silent; he continued to talk and continued to make denials and evasive responses to Keller. Because he waived his right to silence, Her cannot now claim prejudice in an instruction that allowed the jury to use silence as an adoptive admission.
Second, the instruction was not applicable only to the interview with Detective Keller. As the Attorney General points out, Her’s girlfriend testified that on the night of the shooting she asked him if he knew anything about the large number of police cars and helicopters in the area. Her at first responded negatively, but then added, “I didn’t want to tell you because I [would] rather have you not know.” This statement could well be deemed as an evasive response in the face of an implied accusation.
In any event, we are satisfied that error, if any, in the adoptive admission instruction was harmless beyond a reasonable doubt. (See People v. Hardy (1992) 2 Cal.4th 86, 154.) The instruction touched on tangential issues and did not play an important role in the jury’s evaluation of whether Her was guilty of murder.
B. Pretextual Self-defense
Her and Lao each assign error to the giving of CALJIC No. 5.55. The instruction, which was given over defense objection, told the jury that the right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent need for exercising the right of self-defense. The prosecutor used the instruction in closing argument to argue that defendants could not rely on the right of self-defense if the evidence showed they deliberately drove into the territory of their HNS rivals with the intent to foment a quarrel.
Defendants claim the instruction should not have been given because there was no evidence that they drove by 3212 Western with the specific intent to create a pretext for self-defense.
We find no reversible error. First, the instruction was simply part of a packet of self-defense instructions requested by the defense, all of which the court decided to give and some of which conflicted with others. As the court stated in Olguin: “It was obvious to anyone that not all of those instructions could apply to the case, and the jurors were specifically instructed they were to ‘Disregard any instruction which applies to facts determined by you not to exist.’ (CALJIC No. 17.31.)” (Olguin, supra, 31 Cal.App.4th at p. 1381.) We presume the jury follows the instructions given. (Ibid.) The California Supreme Court has also observed that an instruction correctly stating a principle of law but not applicable to the facts of the case is usually harmless, having little or no effect “‘other than to add to the bulk of the charge.’” (People v. Rollo (1977) 20 Cal.3d 109, 123, quoting People v. Sanchez (1947) 30 Cal.2d 560, 573.)
Second, while there was credible evidence that HNS gang members returned the fire of the drive-by shooters, the notion that defendants were exercising their right of self-defense when they drove by the apartment building and riddled it with bullets, is nothing short of fanciful. For the jurors to have accepted this theory, they would have had to conclude that defendants and a third companion drove a stolen car into the heart of enemy gang territory and, while armed to the teeth, were fired upon by HNS members who, serendipitously, happened to be standing outside. Aside from the fact that, as Detective Lee pointed out, a shotgun is not a useful weapon to carry around for self-defense, such a scenario defies both logic and common sense. We conclude there was no substantial evidence to support a jury finding that the occupants of the Camry were exercising their right of self-defense. (See People v. Shelmire (2005) 130 Cal.App.4th 1044, 1054-1055.)
When asked at oral argument what evidence in the record showed that the victims fired first, counsel for Lao cited only the fact that one bullet entered the side passenger window of the Camry and exited the “back windshield” (sic), and expert testimony that one gang feels “disrespected” when a rival gang enters its territory. We find this far too flimsy and speculative a basis to support a viable claim of perfect self-defense.
Because there was no substantial evidence of self-defense, the jury could not have been misled by the giving of CALJIC No. 5.55 and the alleged instructional error was harmless. (People v. Flood (1998) 18 Cal.4th 470, 491; Cal. Const., art. VI, § 13.)
C. Imperfect Self-defense
In accordance with the defense request, the jurors were given CALJIC No. 5.17, which told them that a person who kills another in an actual but unreasonable belief in the necessity to defend against imminent peril is not guilty of murder and can only be convicted of the crime of voluntary manslaughter.
Defendants take issue with the third paragraph of the instruction, which states: “However, this principle [i.e., imperfect self-defense] is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force, attack or pursuit.” (CALJIC No. 5.17.) While conceding that the language is lifted “almost verbatim” from the California Supreme Court case of In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1 (Christian S.), Lao launches into a technical, abstract discussion in which he attempts to show that the sentence is not an accurate statement of law and should not have been adopted by the Committee on Standard Jury Instructions.
Preliminarily, we note that defendants requested that the court give CALJIC No. 5.17 without qualification. When defense counsel makes a conscious and deliberate tactical choice to request a particular instruction, the rule of invited error applies, and defendant cannot challenge it on appeal. (People v. Wader (1993) 5 Cal.4th 610, 658.) Since there is no claim that counsel requested the instruction through inadvertence or incompetence, the argument is barred.
In Christian S., supra, 7 Cal.4th 768, the state Supreme Court declared: “It is well established that the ordinary self-defense doctrine--applicable when a defendant reasonably believes that his safety is endangered--may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified. [Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances.” (Id. at p. 773, fn. 1.)
In People v. Seaton (2001) 26 Cal.4th 598, the Supreme Court reaffirmed this principle, i.e., that where the defendant is the aggressor and the victim’s response is legally justified, defendant may not rely on unreasonable self-defense to reduce a murder charge to voluntary manslaughter. (Id. at p. 664.) Although neither Seaton nor Christian S. expressly approve of the third paragraph of CALJIC No. 5.17, it is unmistakable that the state high court stands by it as a correct statement of law. So do we. No reversible error is shown.
D. Cumulative Instructional Error
Lao claims that even if there was no error in giving CALJIC No. 5.17, the combined effect of giving CALJIC Nos. 5.55 and 5.17 was prejudicial because the jurors “likely” combined the two instructions to preclude application of the imperfect self-defense doctrine and his ability to establish the “partial defense of voluntary manslaughter.”
Because we have found no error in either of the instructions, we dismiss the claim that their combined effect resulted in prejudicial error. (People v. Roybal (1998) 19 Cal.4th 481, 531.) Moreover, as discussed in part VII.B. (pp. 22-24, ante), we reject Lao’s predicate assertion that the evidence made out a “strong case” that HNS gang members standing outside 3212 Western initiated the shootout.
In a final, catch-all supplication, Lao contends that CALJIC Nos. 2.03 (wilfully false statement--consciousness of guilt), 2.06 (suppression of evidence--inference of guilt), 2.52 (flight following commission of crime--consciousness of guilt) and 2.51 (motive not an element of crime, but may be considered in weighing guilt) were “argumentative pinpoint instructions, that rendered the instant case fundamentally unfair in violation of the due process clause.”
The point of Lao’s argument is difficult to fathom. He concedes that all of the cited instructions “have been approved by the California Supreme Court not only as immune from these imputations of impropriety, but as indeed beneficial to the criminal defendant.” Nevertheless, he urges that they combined to skew the case unfairly in favor of the People, because the instructions could equally apply to misconduct by members of the rival HNS gang, yet only defendants were targeted by them.
We reject the argument. Because the instructions speak only of permissible inferences, they do not remove “from the jury its prerogative of determining the applicability of the instruction” (People v. Anderson (1989) 210 Cal.App.3d 414, 422) and “in no way shift[] the burden of proof or destroy[] the presumption of innocence; the prosecution must still satisfy the jury of a defendant’s guilt beyond a reasonable doubt” (People v. McFarland (1962) 58 Cal.2d 748, 756). That acts or omissions by HNS gang members might sustain adverse inferences against them is irrelevant. The jury’s task was to determine the guilt or innocence of defendants, not to determine the culpability of parties not charged. Finally, we do not perceive how the combined effect of instructions that were concededly proper and applicable to the case can be alchemized into a finding of prejudicial error.
VIII. Sentence Errors
A. Her’s LWOP Sentence
Her claims that his sentence of life without the possibility of parole (LWOP) for the murder of Fong Vue was unlawful, because he was only 15 years old at the time of the offense. The Attorney General concedes the point, and we agree.
Pursuant to the jury’s special circumstance finding, the trial court sentenced Her to life without the possibility of parole for the murder conviction. Her was born on September 20, 1986, and thus was 15 years old when he committed the murder. The probation report erroneously reported Her’s age as 16 years old at the time of the offense, which no doubt contributed to its recommendation of an LWOP sentence.
Section 190.5 prescribes the maximum punishment for juvenile defendants who have been found guilty of special circumstance findings. Subdivision (b) specifies that the maximum punishment for a juvenile who was at least 16 and under 18 at the time of the offense may be sentenced to either LWOP or 25 years to life, at the court’s discretion. However, as noted in People v. Demirdjian (2006) 144 Cal.App.4th 10, 17 (Demirdjian), “For juveniles under 16 who were 14 or 15 when the crime was committed, a life term without possibility of parole is not permitted, leaving a term of 25 years to life with possibility of parole.” (First italics added.)
Since the trial court’s intent to impose a life term for the murder conviction is unambiguous, we find no need for a remand. We shall modify Her’s sentence to 25 years to life with the possibility of parole.
B. Cruel and Unusual Punishment
Her claims that a state prison sentence of 25 years to life violates both the state and federal prohibitions against cruel and unusual punishment.
Preliminarily, we note the issue has not been preserved for review, since Her’s counsel did not challenge the constitutionality of his sentence below. (People v. Norman (2003) 109 Cal.App.4th 221, 229 (Norman); People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)
However, we shall reach the merits of the claim in the interest of judicial economy and to forestall the “inevitable ineffectiveness-of-counsel claim.” (Norman, supra, 109 Cal.App.4th at p. 230.)
The Eighth Amendment to the United States Constitution proscribes “cruel and unusual punishment” and “contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’” (Ewing v. California (2003) 538 U.S. 11, 20 [155 L.Ed.2d 108, 117], quoting Harmelin v. Michigan (1991) 501 U.S. 957, 996-997 [115 L.Ed.2d 836, 866] (conc. opn. of Kennedy, J., joined by O’Connor & Souter, JJ.) That principle prohibits “‘imposition of a sentence that is grossly disproportionate to the severity of the crime’” (Ewing, supra, 538 U.S. at p. 21 [155 L.Ed.2d at p. 117], quoting Rummel v. Estelle (1980) 445 U.S. 263, 271 [63 L.Ed.2d 382, 389]), although in a noncapital case, successful proportionality challenges are “‘exceedingly rare.’” (Ibid.)
Her relies primarily on People v. Dillon (1983) 34 Cal.3d 441, 479 (Dillon) to advance his disproportionality argument. We are not persuaded. In Dillon, a 17-year-old boy was convicted of first degree felony murder and sentenced to life imprisonment for shooting an armed man who approached him during the defendant’s attempted robbery of a marijuana farm. (Id. at pp. 451-452.) Both the judge and jury believed the defendant should be committed to the California Youth Authority, but since he was ineligible, the court had no alternative but to sentence him to life imprisonment. (Id. at pp. 485-487.) Noting that the other participants in the robbery received relatively “petty chastisements” (id. at p. 488), as well as the harshness of the felony-murder rule, the state Supreme Court concluded the defendant’s punishment was cruel and unusual within the meaning of article I, section 17 of the California Constitution (id. at pp. 486-489).
By contrast, the jury here found that Her committed a premeditated murder to promote the activities of a criminal street gang. Unlike the youth in Dillon who had no prior trouble with the law, Her was a documented gang member who was on probation when he committed the murder and fled the jurisdiction the next day.
In Demirdjian, supra, 144 Cal.App.4th 10, the Court of Appeal for the Second Appellate District, Division Four, upheld the constitutionality of a 25-year-to-life sentence for a defendant who committed two unprovoked murders at the age of 15. (Id. at p. 16.) The court quoted from People v. Guinn (1994) 28 Cal.App.4th 1130, which upheld a sentence of life without parole in the case of a defendant who committed an unprovoked murder at age 17: “[W]hile that punishment is very severe, ‘the People of the State of California in enacting the provision [authorizing this punishment] . . . made a legislative choice that some 16- and 17-year-olds, who are tried as adults, and who commit the adult crime of special circumstance murder, are presumptively to be punished with LWOP. We are unwilling to hold that such a legislative choice is necessarily too extreme, given the social reality of the many horrendous crimes, committed by increasingly vicious youthful offenders, which undoubtedly spurred the enactment.’” (Demirdjian, supra, 144 Cal.App.4th at p. 16, quoting Guinn, supra, 28 Cal.App.4th at p. 1147.)
The logic of Guinn and Demirdjian applies here. Unlike the youthful offender in Guinn whose sentence totally precludes his release, Her’s indeterminate sentence means that he stands a reasonable chance of leaving the prison walls before he reaches old age. There is nothing shocking or unconscionable about such a disposition.
Her also cites the United Nations Convention on the Rights of the Child and the United States Supreme Court case of Roper v. Simmons (2005) 543 U.S. 551, 575 [161 L.Ed.2d 1, 25], which found that imposition of the death penalty for juvenile offenders constituted cruel or unusual punishment. These authorities are so far removed from the present circumstances that the argument built around them requires no separate reply.
We conclude that a life sentence with the possibility of parole for a criminally sophisticated 15 year old convicted of a special-circumstance murder to promote the objectives of a criminal street gang violates neither the Eighth Amendment nor article 1, section 17 of the California Constitution.
DISPOSITION
Defendant Kinson Her’s sentence for murder (count one) is modified to reflect a sentence of 25 years to life with the possibility of parole. The trial court is directed to amend item Nos. 4, 5, 6, and 11 of Her’s abstract of judgment in accordance with this opinion and is further directed to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgments of codefendants Kinson Her and Houa Lao are affirmed.
We concur: SIMS, Acting P.J., NICHOLSON, J.